Hays and Wainwright v. State

Oppenheimer, J., delivered the opinion of the Court. The appellants, Hays and Wainwright, were tried and convicted in the Circuit Court for Baltimore County before Judge ⁴⁸⁴ Raine, sitting without a jury, on December 4, 1964, on charges of larceny and receiving stolen goods, and each was sentenced to serve six years in the Maryland House of Correction. Through court-appointed counsel, they appealed to this Court. At the argument before us, on October 14, 1965, the appellants’ counsel made an oral motion to reverse the convictions under Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965), which was filed on October 11, three days before.

We heard arguments on the motion on November 12, together with a similar motion in Smith v. State, 240 Md. 464 , 214 A. 2d 563 (1965) which was filed today. The appellants were indicted on November 23, 1964 by the grand jury for Baltimore County, from which any persons who did not believe in the existence of God were excluded. Neither appellant challenged the array, or moved to dismiss the indictment. Their objection was first made at the oral argument in this Court on their appeal.

The question before us is whether their convictions must be reversed under Schowgurow and State v. Madison, 240 Md. 265 , 213 A. 2d 880 (1965). In Schowgurow , we held that, under the decisions of the Supreme Court of the United States, the provision of the Maryland Declaration of Rights requiring demonstration of belief in God as qualification for service as a grand or petit juror was invalid. We further held that the legal principle therein set forth shall not apply retroactively, “except for convictions which have not become final before rendition of this opinion.” The convictions of the appellants had not become final on that date. Bell v. State, 236 Md. 356, 363 , 204 A. 2d 54 (1964) and cases therein cited. 1 See also Belton v. State, 228 Md. 17, 23 , 178 A. 2d 409 (1962).

The questions before us are whether, under the Maryland Rules and law, the appellants must be deemed to have waived any objection to the method of selection of the ⁴⁸⁵ grand jury which indicted them because of their failure to raise the objection in the proceedings in the court below; and, if so, whether the presumption of the waiver constitutes a deprivation of due process of law, under Fay v. Noia, 372 U. S. 391 (1963) and other decisions of the Supreme Court. Maryland Rule 885 reads as follows: “This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; but where a point or question of law was presented to the lower court and a decision of such point or question of law by this Court is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal to this Court, such point or question of law may be decided by this Court even though not decided by the lower court. Where jurisdiction cannot be conferred on the Court by waiver or consent of the parties, a question as to the jurisdiction of the lower court may be raised and decided in this Court whether or not raised and decided in the lower court.” In a long line of cases, we have held that, under this Rule and its predecessors, a defendant in a criminal prosecution cannot raise for the first time on appeal an objection which was available to him at the trial and which he did not raise below. Tucker v. State, 237 Md. 422, 425 , 206 A. 2d 691 (1965); Capparella v. State, 235 Md. 204, 209 , 201 A. 2d 362 (1964) and cases therein cited.

It is also the law of this state, however, that if a change in the law after conviction but before final judgment, including the final judgment of the highest court empowered to review the conviction, requires reversal of the judgment, the judgment will be reversed, because the decision must accord with the law as it is at the time of final judgment. Bell, supra, and authorities therein cited. The two rules are not in conflict; on the contrary, in conjunction, they embody the fundaments of fairness. In Madison v. State, 200 Md. 1, 8-9 , 87 A. 2d 593 (1952), Judge Markell said, for the Court: ⁴⁸⁶ “We are told that failure to raise below questions now raised was due to fear of prejudicing defendant before the jury by objections, especially objections which suggest guilt, e.g., the right of the jury to find a verdict without capital punishment.

We are aware that some lawyers include such ‘taboos’ in their ‘trial tactics’— and others, who have attained reputation as trial lawyers, make any objections they deem substantial and press them to the end. We are, however, without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result.” Moreover, it is generally important that this Court should have the benefit of the consideration of the point or question involved by the court below. The gravamen of the concomitant doctrine is set forth in the early case of Keller v. State, 12 Md. 322, 326 (1858). In that case, Judge Tuck, for the Court, pointed out that Chief Justice Marshall had stated the doctrine generally in United States v. Schooner Peggy, 1 Cranch 103 (1801).

Judge Tuck said: “And so if the law be repealed, pending the appeal or writ of error, the judgment will be reversed, because the decision must be in accordance with the law at the time of final judgment.” In this case, as we pointed out in Schowgurow , the law in effect at the time of the selection of the grand jury had been part of the Maryland constitution for over a century. That law was changed by this Court, because of the reversal of our decision by the Supreme Court in Torcaso v. Watkins, 367 U. S. 488 (1961). The change in the law took place after the appellants had been indicted and convicted, pending their appeal. If-the appellants had objected to the method of selection of the grand jury which indicted them before their trial or at any time in the proceedings below, that objection would have been rejected by the lower court, there-then being-no decision of this Court to the contrary.

Unlike the failure to object in the cases which have been cited under Rule 885, the appellants’ failure to-object was not a waiver of an existing right. In holding in Schowgurow that the legal principle therein set forth should not apply retroactively, we relied, in large part, ⁴⁸⁷ upon Linkletter v. Walker, 381 U. S. 618 (1965), in which the Supreme Court held that its decision in Mapp v. Ohio, 367 U. S. 643 (1961) did not operate retrospectively upon cases finally decided prior to Mapp . Basically, the decision as to nonretroactivity in Linkletter rested upon the same broad considerations of public policy which we found controlling in Schowgurow . 2 However, in Linkletter , the Supreme Court, after a full discussion of the principles involved and of the precedents, held that, despite its declaration of non-retroactivity, the Mapp decision applied to state court convictions which had not become final before rendition of the Mapp opinion. This was the same exception which we made in our declaration of nonretroactivity in Schowgurozv.

In its discussion of this phase of its opinion in Linkletter , the Supreme Court pointed out that: “However, we are not here concerned with pure prospectivity since we applied the rule announced in Mapp to reverse Miss Mapp’s conviction. That decision has also been applied to cases still pending on direct review at the time it was rendered.” 381 U. S. at 622 . In Schowgurow , we applied the rule announced in that case in